Tahmina’s Thoughts on The I-140- EAD and AC-21 Proposed Regulations

I know many of you have been anxiously waiting for the proposed regulations that were published on the Federal Register today. Since the Executive Action announcements were made in November 2014, today’s proposed regulations were likely one of the most anticipated ones for high-skilled immigration fixes.

One of the ‘asks’ that the advocacy groups had and one that was hoped to be seen in these proposals was more flexible work permit options, namely the concurrent filing of employment authorization with an approved I-140. The proposal doesn’t go that far. But that is not surprising as the issue was going to be addressed with the October Visa Bulletin that would have allowed concurrent filing but instead turned into fierce litigation. If the October Visa Bulletin litigation outcome is favorable, the concurrent filing of I-485 will take care of this issue.

Having said that, the only proposal that comes close to this is:

Eligibility for employment authorization in compelling circumstances. DHS also proposes to provide additional stability and flexibility to certain high-skilled nonimmigrant workers in the United States who are the beneficiaries of approved employment-based immigrant visa petitions but who cannot obtain an immigrant visa number due to statutory limits on immigrant visa issuance and are experiencing compelling circumstances. Specifically, DHS proposes to allow such beneficiaries in the United States on E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretionary determination of DHS, justify the consideration of such employment authorization.”

DHS will not define “compelling circumstances” so that there can be flexibility in the situation but in general it cannot be that a visa is unavailable and that the issue must be out of the control of the immigrant worker. Some of situations that will be considered:

Serious Illnesses and Disabilities.

Employer Retaliation.

Other Substantial Harm to the Applicant.

Significant Disruption to the Employer. T

Examples include loss of funding or grants and corporate restructure, among other things. The EAD will be issued for one year and will not be extended unless the criteria continue to be met. (See pages 96-103). One would be ineligible if one has a criminal conviction for a felony or two misdemeanors. Family members will be subject to the same limitations.

The above will be very limiting in utilization and will not help most of the immigrant workers stuck in the backlog. However, for those who will be eligible, this likely will be useful.

“Third, I direct USCIS to carefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

Today’s proposed rules, in general, seek to do just that in my opinion. The proposed rules offer the following highlighted benefits:

Irrevocable I-140s -except for fraud/misrepresentation. This is huge. I cannot tell you the number of times I have encountered anxious immigrant workers and employers who need to file new petitions immediately for fear of I-140 revocations. This new policy will eliminate that anxiety and even my own stress levels!

60 days grace period for H1bs, E1, E2, E3, L1 and TN visas (only H1b visa holders got 10 days at the end of a valid visa expiration).

Retention of priority dates even if an immigrant petition has been denied or revoked. This will greatly benefit one’s position in the so-called ‘line’. Often an EB1, EB2 or EB3 petition can take 8-12 months to process, sometimes even more. If can case is denied or revoked, losing that priority date can set one back years. Retaining the PD will greatly assist stability and flexibility.

Giving “Same or Similar” a simple dictionary definition so that people can progress in their careers without risking their petitions. Whether this plays out well is yet to be seen. The draft ‘same or similar’ memo issued by USCIS in November 2015 seeks to give more details.

There is more to the proposed rules, and I will write more soon on issues I do not mention here. In sum, I think it is a good attempt to clarify and streamline policies that will bring consistency, stability and flexibility. I can see benefits for both employers and immigrant workers but the lack of broader EAD usage misses the opportunity to make an impact.

Ultimately, for the profound and lasting changes that are necessary can only be made by Congress. However, it is unlikely that any significant change or bill will be passed before the presidential election is over. And even then, who is elected to the White House will be of evermore significance.

Happy New Year.

**Copyright 2015 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

About The Author

Tahmina Watson is an immigration attorney and founder of Watson Immigration Law in Seattle Washington. She was a practicing barrister in London, UK, before immigrating to the United States herself. While her practice includes family-based and employment-based immigration, she has a strong focus on immigrant entrepreneurs and start-up companies. She can be contacted at tahmina@watsonimmigrationlaw.com. You can visit www.watsonimmigrationlaw.com to learn about Tahmina and her practice.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.